Harassment and discrimination while practicing the law constitutes professional misconduct, the American Bar Association (ABA) has voted in an ethics resolution aimed at condescending language and sexual harassment encountered by female attorneys, in particular. Yet the guidelines have raised opposition from some who fear that the rules will impair not only lawyers' freedom of speech, but their ability to represent their clients.
According to the new rules, lawyers could face discipline for any actions or comments based on race, religion, sex, or disability that they should reasonably know constitute harassment. Nearly half of states as well as the District of Columbia already have similar rules, but before resolution 109 passed in the ABA House of Delegates, there was no national standard preventing harassment.
“The states have not waited for the A.B.A. to act. They have been laboratories of change,” Myles V. Lynk, a law professor at Arizona State University who leads the association’s Standing Committee on Ethics and Professional Responsibility, said at a debate during the annual ABA meeting, according to The New York Times. “It is time for the A.B.A. to catch up.”
Penalties for violating the ABA ruling will vary, depending on the offense and state. State bar associations will be responsible for doling out punishments.
While the vote passed easily, the new ruling has met plenty of opposition. Some see the ruling as a potential violation of First Amendment rights to freedom of speech that go beyond standard workplace anti-discrimination rules, particularly considering lawyers' duty to represent clients who may hold controversial views.
A group of lawyers wrote a letter to Patricia Lee Refo, the chair of the ABA's House of Delegates, to protest the rule, saying that it harms free speech and religious freedom. The group also wrote an op-ed in the National Law Journal, arguing that it the move would serve political correctness more than professionalism.
"Say that you’re at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about such matters – Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint," University of California, Los Angeles law professor Eugene Volokh wrote in piece for The Washington Post, criticizing the new ethics rule.
The law specifically exempts "legitimate advocacy that is material and relevant to factual or legal issues or arguments in a representation."
Despite the dissent, no lawyers spoke out against the revision at the ABA meeting in San Francisco.
Many of the rule's defenders have pointed to female attorneys' experiences with harassment, arguing such a rule is long overdue: having opposing counsel address a lawyer as "honey," or make sexual comments, for example.
Mark Johnson Roberts, the chair of the ABA's Commission on Sexual Orientation and Gender Identity, spoke in favor of the rule at the meeting, the ABA Journal reports, telling the story of a female colleague who was groped and harassed by a male lawyer at a company holiday party.
At the time, his actions were not considered an ethics violation. The woman was worried about filing a police report, thinking it would hurt her professionally, but did file a police report.
"Now the opposing counsel has a criminal conviction," Mr. Roberts told members. "So be careful what you wish for when you say [victims] should pursue criminal remedies first."